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EEOC Guidance to Employers Regarding Vaccination Policies

January 9, 2021

The Equal Employment Opportunity Commission (“EEOC”) has issued a lengthy technical assistance document on COVID-19 and actions which employers can take without violating federal laws such as the Americans with Disabilities Act (“ADA”), the Genetic Information Nondiscrimination Act (“GINA”), and Title VII of the Civil Rights Act. While the December 16, 2020, document does not have the force of law, it offers valuable guidance to employers.

A key—and timely—portion of the EEOC’s guidance addresses COVID vaccination policies. According to the EEOC, employers may adopt policies which require that employees be vaccinated for COVID-19, subject to certain cautions.

The following should be considered in any policy mandating vaccinations:

• A policy should state whether an employer or a third-party will conduct pre-vaccination screenings, schedule the order in which employees are vaccinated, and administer the vaccines.

• Any pre-screening should avoid questions about an employee’s family medical history or genetic history that implicate GINA.

• If an employee receives a COVID vaccination from a source other than the employer or its third-party provider, the employer can require that the employee provide proof of vaccination.

• The policy might state, as a way of avoiding employee objections, that the EEOC has made it clear that neither the administration of a vaccine nor the requirement that an employee show proof of vaccination are a “medical examination” or “disability-related inquiry” under the ADA.

• If an employee refuses to answer questions in the pre-vaccination screening and, therefore, is not vaccinated, the employer must consider if the unvaccinated employee’s presence at work will pose a “direct threat” as that concept is recognized under the ADA to the employee, co-workers, and individuals such as customers, clients, or patients.

• If the employer determines there is a direct threat, the employer then will consider whether the employee can be accommodated by, for example, working from home. If there are no available accommodations, the employee might be offered the option of unpaid leave until the COVID crisis has sufficiently passed to allow the employee to return to the workplace.

•If an employee has a sincere religious belief that prevents him/her from being vaccinated, the employer will determine if there are accommodations available to the employee as required by the prohibitions in Title VII on religious discrimination. If no accommodations are available, the employer may, again, offer unpaid leave.

Healthcare providers likely will have an easier time showing a “direct threat” as to employees who have a role in patient care. Employers of those on the front lines in a range of industries and who deal directly with the public also may be able to show more readily that unvaccinated employees pose a direct threat.

Any mandatory vaccination policy should be reviewed for the above “legal landmines” before it is implemented. Further, any accommodations discussions with employees should be part of an interactive process between the employer and employee. Detailed, contemporaneous documentation should be maintained of accommodations discussions.

The full EEOC document and other COVID-related EEOC materials are available at www.eeoc.gov/coronavirus.

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